11 F. 353 -

11 F1d 353

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Case Text

V. Sl::l50N.

85D

ELLIS

V.

SISSON and others.

(On-cui' Oowrt, No D. Illinois. March 27, 1882.)
REMOVAL OF CAUSE-THE WHOLE COlSTUOVERSY TO BE REMOVED.

When a cause is brought within the terms described in the second and third sections of the act of :March 3, 1875, the whole suit is removed, and not a part; and if a person has only such an incidental interest as stated growing out of the litigation he cannot remove the cause.

George' W. Spahr, for plaintiff Spahr. Charles Dunham and Chas. M. Osborn, for defendant. DRUMMOND, C. J. This is a. motion to remand this cause to the circuit court of Peoria county, from whence it came. It is a controversy of many years' standing, to which John M. Waugh, at one time the owner of 480 acres of land in Mercer oounty, Benjamin T. Sis. son, who, with Waugh, had erected a steam flouring.mill, Henry B. Ellis, and others were parties. The facts are very complicated, and many questions have arisen in the course of the litigation in whioh different parties and different interests have been involved. The objeot has been to dispose of the property in suoh a way as to have the proceeds divided for the benefit of various olaimants; a principal controversy being, who had the prior'claim and lien upon the property ? There were bills for speoific performance, for foreolosure o{ mortgages, various cross-bills, supplemental bills, amendments, answers, and replications. The litigation commenced as long ago as March, 1861, and the first case reported is that of Sumner v. Waugh, 56 Ill. 531. The decree rendered in that oase in the lower court was reversed by the supreme court. The case then went baok to the circuit court and oame up again as the case of Cable v. Ellis, and is reported in 86 Ill. 535. In both these cases the facts relating to the controversy are stated with more or less fullness. The decree of the lower court was again reversed in Cable v. Ellis, and on the oase being sent back to the court below a decree was rendered which was again appealed through the appellate court to the supreme oourt of the state and is reported as Ellis v. Sisson, 96 Ill. 105, where the decree of the appellate court was reversed, and the case was again returned through the appellate court to the oircuit court of Peoria county. It will thus be seen that the litigation has oontinued through the various courts of this state for 20 years, during which time it has been before the supreme court of the state three times. It Wl. S after v.ll,noA-23

354

FEDERAL REPORTER.

all this had taken place that in May, 1881, Hiram Cable and Robert in the case and filed their respective Lee for the first time petitions in the circuit court of Peoria county, claiming that since the litigation had commenced they had made valuable improvements on a part of the land, for which they were entitled to a lien, and asking that it should be recognized in the distribution of the proceeds in any sale that might be made of the property. On the twenty-eighth and twenty-ninth of July, 1881, Cable and Lee filed their respective petitions and bonds for the removal of the cause to this court, on the ground that there was a controversy between them and citizens of other states which could be fully determined as between them, and the question is whether they had the right under the act of 1875 to remove the cause to this court, and I thInk that they had not. It has been decided by the supreme court of the United States (Barney v. Latham, 103 U. S. 205) that when a cause is brought within the terms described in the second and third sections of the act of 1875 the whole suit is removed, and not a part; so that, if this case was properly removable, it brings with it the whole litigation connected with this controversy and the innumerable questions which have arisen during its progress. It will be observed from the statement which has already been made that this is a controversy which has sprung up many years after the litigation commenced, and not one which existed at the time that the suit was instituted, and it is, besides, an incident of the litigation; and. I can hardly believe that it was the intention of congress, when it declared that in any suit mentioned in the last clause of the second section of the act of 1875 there should be Us controversy which is wholly between citizens of different states and which can be fully determined as between them," it meant an incidental controversy of this kind which might arise during the progress of the cause, and where parties might come in for the protection of their interests. If this be the true construction of the act of 1875, then it is easy to see there will be no end to instances where, during a protracted litigation in which property may be in charge and subject to the jurisdiction of the state court, an application can be made, where the citizenship of the parties may authorize it, for the removal of the suit to the federal court. The question is very important, because there are many cases where the state courts take possession of property and administer it, dispose of it, and distribute the proceeds among the parties entitled to it; and to hold, after a state court has for a series of years thus proceeded to ascertain and

CLARK V. CHICAGO, M.

&;

ST. P. RV. CO.

355

settle the rights of parties litigant and their claims to property, that where a person has an incidental interest, therefore he can remove the suit to the federal court, might complicate in a very serious manner the relations which exist between the courts, state and fecleral, an.d interrupt the harmony which ought to ex.ist between them in adjudicating the rights of parties.

The second subdivision of section 639 of the Revised Statutes was repealed by the act of 1875, so far as sUbdividing the cause of action. J. SAME-AcT OF 1875. Where the petition contains all the jurisdictional facts necessary to effect a removal under the second clause of the second section of the act of March 3, 1875, but the prayer of the petition did not ask for the removal of the entire suit, the cause will be remanded.3. SAME-JURISDICTION.

When a sufficient case for removal is made in the state court the jurisdiction of that court is at an end, and the jurisdiction of the federal court attaches, and the fact that only a part of the record is tiled in the federal court will not oust its jurisdiction.
4. JOINT TORT-FEASORa-SEVERABLE ACTION-lhGHT OF REMOVAL.

Where an action is brought against a resident and non-resident defendant sounding in tort, and each is liable as a wrong-doer, and the controversy is severable, the party bringing the suit cannot, by joining the non-resident de. fendant, debar him from asserting a right given by the act of 1875.

Lovely It Morgan, for plaintiff. Cameron, Losey It Bunn, for defendant. NELSON, D. J. The plaintiff, Ethan A. Clark, by guardi!!on, com.menced an action December 1, 1880, in a court of the state of Min· nesota, against the Chicago, Milwaukee & St. Paul Railway Company, and the Southern Minnesota Railway Company, to recover damages for a personal injury. The action is one sounding in tort. The com· plaint alleges the defendants are joint wrong-doers, and sets up that the defendant the Chicago, Milwaukee & St. Paul Railway Company is a Wisconsin corporation, and the defendant the Southern Minnesota Railway Company is a Minnesota corporation. The former